Ignoring risk is folly, especially when the downside could be complete ruin for a business or investment portfolio. That’s why it’s essential for risk managers to persuade others to pay close attention to things that go bump in the night and then figure out a way to prevent loss, to the extent possible. Unfortunately, risk management is often seen as dull, overly complex or unlikely to be a path to career advancement. I know this firsthand. Having worked in various corporate settings, risk managers have few fans. They are the people who say “no” or ask others to gather data and documents instead of doing the kind of glamorous work that adds to one’s bottom line. Risk management is a thankless task until it isn’t. When the stars align, no one cares about managing uncertainty. It’s the “oops” moments that remind the world why taming risk before disaster occurs is a big deal.

For frustrated risk managers, there is hope, especially if you are willing to tweak your communication skills in pursuit of a worthy cause. Don’t take my word. Check out what Scott Adams Says.

According to the creator of the successful Dilbert cartoon strip and author of bestselling books such as How to Fail at Almost Everything and Still Win Big, simplicity is a core element of convincing others. In his recent video about doing laundry, I laughed out loud when he explained how he avoids the risk of discoloration. Buy clothes that don’t have to be washed separately. It’s such a basic and obvious solution that one wonders why it’s not more commonplace. (As I write this post, I’m wearing yoga pants and a sweatshirt with spots from something else I mistakenly cleaned in the same load.)

In one of Adam’s many insightful essays, the reader learns that another persuasion technique involves the use of visuals, especially those that appeal to people’s emotions. In investment land, think about the photos of senior citizens who lost retirement money in 2008 juxtaposed next to images of wealthy bankers with cigars and fancy cars. Regardless of case-specific facts, such powerful images scream “good” versus “bad.” It’s no surprise that financial service ads tend to focus on comforting images whereas political commercials show pictures likely to rile voters.

Yet another tool in the persuasion toolbox is what Adams describes as the “high ground maneuver” or the art of advancing an argument to a level that garners widespread agreement, thereby trivializing any other position. For fiduciaries being sued over their management of other people’s money, they might silence critics by demonstrating (if they can) how their risk management actions broadly advantage beneficiaries such as retirees or endowment recipients. The goal would be convincing others to overlook short-term strategy misdirection in pursuit of a lofty and prudent long-term focus.

When it comes to risk management, it’s not just about numbers. Rallying others to do their part is critical. One has to be an effective cheerleader to grapple with the unknown. I’m convinced that this persuasion “thing” has legs. That’s why I’ve just pre-ordered Win Bigly by Scott Adams for a dose of wisdom and a few chuckles.

Economist Dr. Susan Mangiero is pleased to announce that she will be speaking during an upcoming Strafford Live webinar on September 12, 2017 from 1:00 pm to 2:30 pm EST. The Continuing Legal Education (“CLE”) webinar is entitled “ERISA Plan Investment Committee Governance: Avoiding Breach of Fiduciary Duty Claims.”

She will be joined by a prominent ERISA attorney and a senior-level ERISA fiduciary liability insurance executive to discuss risk mitigation approaches that have the potential to help lower the likelihood of breach of fiduciary duty allegations. This program will also address effective litigation strategies, the importance of fiduciary liability insurance and the role of the economic expert in the event of litigation, arbitration, mediation and/or regulatory enforcement actions. Court cases including the recently adjudicated Tibble v. Edison matter will be discussed as part of the program.

Please join the distinguished faculty for what should be a relevant, timely and important conversation about suggested protocols and bad practices to avoid. For more information or to register, visit the Strafford website or call 1-800-926-7926, extension 10. Mention code ZDFCT to qualify for a fifty (50) percent discount. If you have questions you would like answered, please let Strafford know in advance or on the day of the live event.

As a follow-up to my January 12, 2017 announcement about retirement plan risk management education with the Professional Risk Managers’ International Association ("PRMIA"), I am delighted to announce a co-presenter for the February 23, 2017 learning event. Distinguished attorney Meaghan VerGow will talk about ERISA litigation and fiduciary risk management as part of "Establishing Risk Management Protocols for Defined Benefit Plans and Defined Contribution Plans." Click here to read Meaghan VerGow’s impressive bio as law firm partner and ERISA expert with O’Melveny & Myers LLP.

Session One will convene from 10:00 am EST to 11:15 am EST live this Thursday. If you cannot make it in real time, the event can be downloaded for later viewing. It is the debut event of four CPE-qualified events. Speakers will examine risk management for retirement plans from both a governance and economics perspective. Topics to be discussed include the following:

  • Procedural prudence and the costs of ignoring fiduciary risk;
  • Risk management differences by type of retirement plan;
  • Industry norms and pitfalls to avoid;
  • Role of Chief Risk Officer, investment committee members and in-house staff; and
  • Suggested elements of a Risk Management Policy Statement.

Visit the PRMIA website to register for Session One and read about course content for Sessions Two through Four. Our exciting roster of co-speakers for these future events will be posted shortly on this blog at www.pensionriskmatters.com

I’m delighted to work with the Professional Risk Managers’ International Association ("PRMIA") in delivering four (4) educational webinars about retirement plan risk management. According to its website, PRMIA is a "non-profit professional association" with forty-five chapters in various countries around the world. Click to download the PRMIA brochure for more information about membership. I hope you will join us in February and March for what should be an exciting and timely quartet of live events. If you cannot attend in real time, the webinars will be archived for later use. See below for details.

           Lead Instructor: Dr. Susan Mangiero, AIFA®, CFA®, CFE, FRM®, PPC™

                               Thursdays from 10:00 – 11:15 am EST / 3:00-4:15 GMT
                                       February 23 | March 2 | March 9 | March 16

                                                     A Virtual Training Series

This series consists of four webinar lectures, each one delivered with the goal of providing actionable information that can be used by the audience right away.

With approximately $100 trillion in global assets under management, retirement plan fiduciaries and their attorneys and advisors face numerous challenges in the aftermath of the worldwide credit crisis that began in 2008. Market volatility, investment complexity and compliance with new accounting standards and government mandates, alongside a strident call for better accountability and transparency, are a few of the pain points that keep pension executives up at night. Litigation and regulatory investigations are on the rise. As a result, enlightened pension decision-makers are turning their attention to risk management technology and techniques as a way to mitigate economic, legal and operating trouble uncertainties. Those who ignore the adverse impact of longer life spans, statutory capital requirements, binding financial statement reporting rules and broader fiduciary duties are destined for trouble. In some countries, trustees may be personally responsible for poor plan governance and may have to pay participants from their own pockets.

Who Should Attend

This series should be of interest to a broad range of financial and legal professionals since poor governance and/or too few resources being devoted to pension risk management within a fiduciary framework can (a) force benefit cutbacks for participants (b) lead to a ratings downgrade which increases a sponsor’s cost of capital (c) force a plan sponsor to come up with millions of dollars (pounds, euros, etc.) in cash for contributions (d) result in a costly lawsuit and/or regulatory enforcement (e) thwart a merger, acquisition or spin-off and/or (f) cause a sponsor to be out of compliance with financial and statutory reporting requirements.

Both senior-level decision makers and staff members can benefit from viewing this series of webinar lectures. Representative titles of likely audience members include: • Directors of the board • CFOs, treasurers, controllers and VPs of finance • Members of a sponsor’s pension investment committee • Pension consultants • Pension advisors • Pension and securities attorneys • Pension and securities regulators • Rating analysts • Financial journalists • Derivatives traders • Executives with derivatives and securities exchanges • ERISA, municipal and sovereign bond and D&O liability insurance underwriters • International, U.S. federal and state lawmakers • Think tank researchers • Industry associations • Chambers of Commerce in various countries • Economists who cover demographic patterns and • Risk management students.

Session One (February 23, 2017): Establishing Risk Management Protocols for Defined Benefit Plans and Defined Contribution Plans

Session One examines risk management for retirement plans from both a governance and economics perspective. Topics to be discussed include the following:

  • Procedural prudence and the costs of ignoring fiduciary risk;
  • Risk management differences by type of retirement plan;
  • Industry norms and pitfalls to avoid;
  • Role of Chief Risk Officer, investment committee members and in-house staff; and
  • Suggested elements of an Investment Policy Statement.

Session  Two (March 2, 2017): Use of Derivatives in Pension Plans

​Session Two looks at how derivatives are used by retirement plans, whether directly or indirectly. Topics to be discussed include the following:

  • Current usage of derivatives by retirement plans for hedging purposes;
  • Financially engineered investment products and governance implications:
  • Fiduciary duties relating to monitoring risks and values of derivatives; and
  • Suggested elements of a Risk Management Policy Statement.

Session Three (March 9, 2017): Liability-Driven Investing and Other Types of Pension Risk Transfer Strategies

Session Three examines the reasons why the number of pension restructuring deals is on the rise, especially in the United States and the United Kingdom, and the type of transactions being done. Topics to be discussed include the following:

  • Nature of the pension risk transfer market and various approaches being utilized;
  • Regulatory considerations for fiduciaries in selecting an annuity provider;
  • Action steps associated with implementing a pension risk transfer; and
  • Case study lessons learned.

Session Four (March 16, 2017): Service Provider Due Diligence

Session Four looks at the growth in the Outsourced Chief Investment Officer (“OCIO”) and Fiduciary Management markets and explains service provider risk. Topics to be discussed include the following:

  • Fiduciary considerations of delegating investment responsibilities to third parties;
  • Risk mitigation practices for selecting and monitoring vendors such as asset managers and advisors;
  • Types of lawsuits that allege fiduciary breach on the part of third parties and related regulatory imperatives; and
  • Identifying warning signs of possible vendor fraud.

Fee: Fee includes access to all four live sessions (75 minutes each), access to the recorded session for 60 days, and digital program materials.

  • Sustaining Members: $355.00
  • Contributing Members: $395.00
  • Free/Non-Members: $465.00

Registration: You may register for this course by clicking on Register at the bottom of the page. For questions regarding registration please contact PRMIA at training@prmia.org.

Cancellation: A refund (less a 15% administration fee) will be made if formal notice of cancelation is received at least 48-hours prior to the date of the first session. We regret that no refunds will be made after that date. Substitutions may be made at no extra charge.

Important Notice: All courses are subject to demand. PRMIA reserves the right to cancel or postpone courses at short notice at no loss or liability where, in its absolute discretion, it deems this necessary. PRMIA reserves the right to changes or cancel the program. PRMIA will issue 100% of registration refund should cancelation be necessary.

CPE Credits: This webinar series qualifies for 6 CPE credits subject to certain rules about required attendance. Email webinars@prmia.org for more information about obtaining continuing education credits.

About the Presenter:

Dr. Susan Mangiero is a forensic economist, researcher and author. With a background in finance, modeling and investment risk governance, Susan has served as an expert on numerous civil, criminal and regulatory enforcement actions involving corporate retirement plans, government retirement plans, hedge funds, private equity funds, foundations and high net worth individuals. She has been engaged by various financial service organizations to provide business intelligence insights about what institutional investors want from their vendors. As founder of an educational start-up company, Susan raised capital from outside investors, created a fiduciary-focused content library and developed a governance curriculum for institutional investors and their advisors. Prior to her doctoral studies, Susan worked at multiple bank trading desks in the areas of fixed income, foreign exchange, interest and currency swaps, financial futures, listed options and over-the-counter options.

Susan Mangiero is a managing director with Fiduciary Leadership, LLC. She is a CFA® charterholder, Professional Risk Manager™, certified Financial Risk Manager®, Accredited Investment Fiduciary Analyst®, Certified Fraud Examiner and Professional Plan Consultant™. Her award-winning blog, Pension Risk Matters®, includes nearly 1,000 essays about investment risk governance and has well over a million views. She is the creator and primary contributor to a second blog about investment compliance at www.goodriskgovernancepays.com. Susan is the author of Risk Management for Pensions, Endowments and Foundations. Her articles have appeared in multiple publications such as RISK Magazine, Bloomberg BNA Pension & Benefits Daily, Corporate Counsel, American Bankruptcy Institute Journal, Mergers & Acquisitions, Business Valuation Update, CFO Magazine and the Journal of Corporate Treasury Management.

Susan has testified before the ERISA Advisory Council and a joint meeting of the Organisation for Economic Co-operation and Development (“OECD”) and the International Organisation of Pension Supervisors (“IOPS”). She lectured at the Harvard Law School and addressed groups such as the American Institute of CPAs (“AICPA”) – Employee Benefits Section, Financial Executives International, and the National Association of Corporate Directors. She can be reached at contact@fiduciaryleadership.com or followed on Twitter @SusanMangiero.
 

Kudos to Chris Carosa for his continued efforts as publisher of Fiduciary News. I share his mission to educate and provide independent insights. That is why I was delighted to be one of the contributors to his recent article, "These Five Developments Dramatically Changed the Retirement Fiduciary World in 2016."

My view is that it is hard to pinpoint standalone issues. So many areas overlap. For example, a discussion about fiduciary litigation frequently involves questions about the reasonableness of fees. A conversation about fees often means talking about asset allocation as well. An analysis of asset allocation trends is commonly linked to investment performance realizations. When one talks about returns, it is usually in the context of economic forecasts. Overlay regulatory mandates, including the imminent U.S. Department of Labor Fiduciary Rule, and it becomes apparent that retirement plan governance is complex territory. Nevertheless, Chris did a noble job of listing significant and distinct trends with his readers. His list includes the following:

  • Capital Markets – Low interest rates continue to challenge both institutional and individual investors. The pension risk transfer market is experiencing unprecedented growth as sponsors seek to focus less on retirement plan management and more on operating their core businesses. Post-election, the U.S. market seems poised for better returns in 2017 although it is thought that low-cost index funds will remain popular.
  • Excessive Fee Litigation – The attention paid to fee levels and the process of assessing reasonableness continues to grow. Some believe that the proliferation of lawsuits has resulted in improved governance regarding the selection and review of various funds. I am quoted as saying that "…investors in search of turbo-charged performance struggled with the reality that the costs of alternatives, derivatives and structured products are generally higher than passive funds."
  • Fiduciary Rule – Uncertainty is the watchword with multiple plan sponsors unsure about what they might want to delegate to a third party. Consulting firms that offer independent fiduciary services have an opportunity to help their clients solve real compliance problems.
  • State Sponsored Private Employee Retirement Plans – Deemed controversial by some, these arrangements to help small business employees are being rolled out by states throughout the nation. The goal is to encourage savings over the long-term although I have doubts about accountability and redress for disgruntled participants. Click to read "State Retirement Arrangements for Small Business Employees" (June 9, 2016) and "Public-Private Retirement Plans and Possible Fiduciary Gaps" (June 5, 2016).
  • Presidential Race – Carosa writes "Of all the events of 2016, nothing will have had more of an impact than the presidential election." Perhaps he is correct. Already the yearend markets have been chugging upward and optimism is on the rise. Yet there are questions about whether regulations such as the Fiduciary Rule will be weakened or perhaps eliminated altogether. Should that occur, financial service industry executives will need to respond.

The article lists other developments including restructuring deals. I am quoted as saying "Restructuring deals have made 2016 a notable year in terms of the number of pension risk transfers and the outsourcing of the responsibilities of a Chief Investment Officer to a third party. Bankruptcy has catalyzed the restructuring of multiple plans, much to the dismay of the savers who have been asked to accept lower benefits. Service providers who have been ordered by the courts to take less favorable terms as swap counterparties or consultants are correspondingly glum."

President John F. Kennedy declared "Change is the law of life. And those who look only to the past or present are certain to miss the future." I concur. Where there is disruption, there is always the opportunity to address a problem and win the hearts and wallets of investors.

Here’s to a terrific 2017. Happy holidays!

A few months ago I was asked to complete a Request for Information ("RFI") by the sponsor of a large pension plan. Their goal was to hire an independent outside party to vet the investment management policies and procedures of its outsourced manager. I’ve long maintained that it is an excellent idea to have someone review operations and render a second opinion about how asset managers perform relative to a retirement plan’s objectives, how much risk is being taken to generate returns, the extent to which the asset manager is mitigating risks and much more.

While this type of "kick the tires" engagement is not as common as many think it should be, that could change quickly. The Outsourced Chief Investment Officer ("OCIO") business model (sometimes referred to as the Delegated Investment Management or Fiduciary Management approach) is rapidly growing at the same time that recent mandates such as the U.S. Department of Labor’s Fiduciary Rule, along with a flurry of lawsuits that allege breach, call more attention to how in-house plan fiduciaries hire and monitor their vendors.

Given the relative newness of this type of engagement and the fact that a review can mean different things to different people, I strongly recommend that the hiring party consider how much work they want done and what budget applies. In the case of the aforementioned invitation to submit a work plan and detailed budget, my colleagues and I were told by the plan sponsor they weren’t really sure what should be done. Our suggestion was to carry out a preliminary review of existing policies, procedures and operations, report the findings to the trustees and then discuss what could be done as a subsequent and more granular assessment, if needed. This would get the ball rolling in terms of identifying urgent concerns and avoid having to write a big check. Even with an opportunity to ask questions of the hiring plan, there were still many unknowns. For example, would the plan sponsor be willing to pay for a complete investigation of items such as vendor’s data security measures, adherence to its compliance manual, growth plans, risk management stance, employee personal trading safeguards, measures to avoid conflicts of interest, business strength, type of liability insurance in place and verification (if true) that back office cash management was separate from trading or instead have an examiner concentrate on a subset? When the plan sponsor said it wanted to have an outside reviewer look at historical investment performance numbers, was its goal to assess data frequently or over a longer period of time, relative to a selected benchmark, relative to an asset-liability management hurdle, based on risk per return units and so on?

Anyone who has reviewed bid documents from public and corporate plan sponsors will likely conclude that there is not much consistency, especially for due diligence and governance assignments. That’s not ideal. Yes, it’s true that facts and circumstances will differ but clarity in terms of what a hiring plan wants can be a plus for everyone. I think it would likewise be helpful for the bid document to state a budget number or "not to exceed" range and let the respondents suggest what work could be reasonably done for that fee. Both the buyer and seller would know at the outset whether it makes sense to proceed with discussions. Another way to go would have the plan sponsor hire someone to interview its in-house fiduciaries, identify and rank their major concerns and then use that information to create a structured Request for Information or Request for Proposal ("RFP") that would be distributed to potential review firms. This exercise would entail a short-run expense but could save money in the long-run by ensuring that the plan sponsor and the review team are in sync about expectations and deliverables.

The bidding process is often a tough one for both buyer and seller. In 2015, I interviewed the co-CEO of a company called InHub, Mr. Kent Costello. I have no economic connection with this company. I had asked for a demo after reading about the use of technology to help fiduciaries with their search and hiring of third parties. In answer to my question about the limitations of the existing RFP process for the buyer, Kent said "It can be difficult for investment committees to put together a list of questions that will help them to effectively compare firms and service offerings … Poorly crafted, irrelevant, or repetitive questions will lead to a weak due diligence process and leave the committee confused and frustrated. Worse yet, it could mean the selection of an inadequate vendor." Just as important, he pointed out that sellers could be reluctant to take the time and money to prepare a detailed proposal, "given the low likelihood of winning the business…" Click to read "Electronic RFP Process and Fiduciary Duty."

Process improvement is always a plus, whether applied to crafting a bid document, responding with a proposal or implementing the work, once hired.

For those who missed the January 27 webinar entitled "ERISA Plan Investment Governance: Avoiding Breach of Fiduciary Duty Claims," click here to download the slides for this educational program. There were three presenters, each of us sharing a different perspective about this important topic. I spoke about economics and governance. Executive Rhonda Prussack (Berkshire Hathaway Specialty Insurance) provided information about ERISA fiduciary liability insurance. Attorney Richard Siegel (Alston & Bird) offered his takeaways for investment committee members as the result of recent litigation decisions.

As with most discussions about fiduciary considerations, there never seems to be enough time to address core concepts. So it was with this Strafford CLE event. Ninety minutes quickly came and went. Here are some of the highlights from my talk.

  • Expect more surveillance of ERISA investment committee decisions. A $25+ trillion retirement money pot and regulatory developments are two reasons. Just a few days ago, the Office of Compliance Inspections and Examinations ("OCIE") of the U.S. Securities and Exchange Commission ("SEC") emphasized conflicts of interest and disclosures as two components of its Retirement-Targeted Industry Reviews and Examinations Initiative.
  • It is a good idea to regularly review the Investment Policy Statement for each plan and either revise asset class limits or rebalance to reflect material changes such as rating downgrades of securities owned, changes in company ownership, large reported contingencies that could adversely impact cash flow or corporate recapitalization.
  • Consider crafting a companion Risk Management Policy Statement or beef up the risk sections in the Investment Policy Statement(s).
  • Document the process that dictates how new investment committee members are selected, whether they are trained (and by whom) and how they are reviewed, by whom and how often.
  • Consider installing a central figure or team to negotiate all vendor contracts and clarify exactly who does what. The goal is to avoid an expectation gap that arises when a contract is ambiguous or silent on tasks that an investment committee needs to have done but a service provider does not want to do or thinks it is not obliged to perform. 
  • Double check the compensation of investment committee members to minimize the risk of conflicts of interest. Suppose for example that a Chief Financial Officer ("CFO") sits on an ERISA plan investment committee at the same time that he is eligible for a bonus if he can cut costs.
  • Engage ERISA plan counsel to put together a "kick the tires" team of economists and attorneys who can render an objective assessment of existing internal controls, governance structure and investment policies and procedures and then recommend changes as needed. 

As with any exercise in good stewardship, taking (and documenting) relevant precautionary actions can be a good defense for an ERISA plan investment committee, especially at a time of heightened scrutiny.

Skittishness about an individual’s financial ability to retire is one factor that I believe underlies continued ERISA litigation activity. As I suggested to Wall Street Journal reporter Anne Tergeson, "’There has been quite a focus on the retirement crisis which has created significant nervousness about this gigantic pool of’ 401(k) money and whether it is being managed properly." See "Lawsuit Alleges Anthem 401(k) Plan Exposed Participants to Higher Fees," January 8, 2016. (As an aside, I am not involved in this litigation and did not comment on this case for the article.)

Perhaps these same jitters about retirement readiness explain why some might consider the installation of a Chief Retirement Officer. Senior ERISA attorney Stephen D. Rosenberg writes that this idea is "so simple…and so brilliant…" in his commentary entitled "What Can a Chief Retirement Officer Do for You?" (December 9, 2015). In my piece about the same topic, I countered that hiring this kind of C-level executive may still prevent ERISA puzzle pieces from snapping easily into place. In "Chief Retirement Officer and a Seat at the Table," I cite the challenges of finding someone knowledgeable enough to navigate complex issues that transcend law, corporate finance, human capital enhancement, governance and investment management. I further question whether a Chief Retirement Officer would help or hinder the work of a Chief Risk Officer if one exists.

Stirring the pot further, Dr. Richard Glass, president of Investment Horizons, shared with me his view that a Chief Collaboration Officer may be a smarter move. Such a person would have a "primary duty" "to break down corporate and consulting silos." His view is that "These silos prevent the successful implementation of talent management (including engagement efforts) and business strategies and thus the level of profitability." Coincidentally, I spent nearly an hour on the phone today in a lively discussion about how to adjust enterprise value to reflect defined benefit plan underfunding. Earnings, share price and overall corporate worth is impacted by ERISA plan economics.

A "silo mentality," as defined by BusinessDictionary.com, is "A mind-set present in some companies when certain departments or sectors do not wish to share information with others in the same company. This type of mentality will reduce the efficiency of the overall operation, reduce morale, and may contribute to the demise of a productive company culture." A reasonable person could quickly conclude that a failure to communicate across functions is fraught with problems. Using case studies and her knowledge of anthropology, prominent Financial Times editor Dr. Gillian Tett makes the case for getting rid of organizational walls in her 2015 book entitled The Silo Effect: The Peril of Expertise and the Promise of Breaking Down Barriers.

Fortunately, there is a solution as long as corporate management has the will to create a unifying vision and motivate management teams to work towards common goals. Forbes contributor and management consultant Brent Gleeson adds that people must be properly incentivized and that goals must be measurable. Read "The Silo Mentality: How to Break Down The Barriers" (October 2, 2013) for more of his insights.

Applied to ERISA plans, the temptation to hoard information is ill-advised. If true that corporate power grabs exist and impede the ability for investment fiduciaries to carry out their duties, a Chief Retirement Officer might not have the clout to coalesce competing interests. Unlike a Chief Risk Officer who reports to a corporate board to ensure her authority and independence, a Chief Retirement Officer would likely wear the hat of fiduciary and have to put participants’ interests ahead of those of shareholders. (The plot thickens when plan participants are contemporaneously shareholders by virtue of investing in company stock as part of a 401(k) line-up.) I defer to ERISA attorneys to address the separation of fiduciary "church and state" but could see someone crying foul if a Chief Retirement Officer communicates too often with company directors. Interested readers can download "Pension risk, governance and CFO liability" by Dr. Susan Mangiero for comments about two-hat conflicts. (Note that my work affiliation is Fiduciary Leadership, LLC.)

One step in the right direction towards effective pension governance is to appoint fiduciaries who have different backgrounds and can therefore facilitate a thorough discussion of various and important topics around the unifying theme of duty and care. Other ingredients of a well-baked set-up include having sensible metrics in place to assess whether fiduciaries are doing a good job. Rewarding them when they step around silos to make better decisions is likewise needed.

Whether a Chief Retirement Officer can assist here is unclear. Surely more discussions about this role make sense.

Year 2016 promises to continue the inspection of fees charged to retirement plan sponsors and participants, in part because it is such an important topic. Also there is considerable litigation in this area that appears unlikely to abate any time soon. According to Groom Law Group, "Nearly forty lawsuits have been commenced relating to 401(k) plan fees." Court documents reveal that other lawsuits focus on fees paid by government pension plans and ERISA defined benefit plans, respectively. Earlier this year, it was reported that litigation risk is a key concern of defined contribution plan executives. In the public sector, a confluence of political pressures, funding deficits and cash squeezes are forcing fees and transparency to the top of the list for trustees. I wrote about the case of Rhode Island a few months ago. Missouri, New Jersey, New York and Ohio promise to rally the fee flag.

I will be addressing the topics of fees and investment risk assessment with co-speakers on January 13, 2016 as part of "Life After Tibble: Investment Monitoring and Litigation Defense Considerations for ERISA Fiduciaries" and again on January 27, 2016 as part of "ERISA Plan Investment Committee Governance: Avoiding Breach of Fiduciary Duty Claims."

What is less clear for the New Year is whether fee disclosures by various plan sponsors will be similar enough in nature to compare and contrast. When reporting standards vary across organizations, the result can be a confusing melange of numbers that cost a lot to put together but don’t help the user. Besides ambiguity, unexplained price bounces can be likewise hard to grasp.

On a more quotidian level than the heady universe of retirement plans, I recently learned that fuzzy price math can pop up from time to time. I stayed at a hotel that offered complimentary breakfast except for my daily double espresso. That would be extra. What I soon discovered was that the pricing varied by day and who came to my table. One morning, the bill showed $5. The next time, the server whispered that he would not charge me. On the third day, I ordered a triple and was asked to pay $12. When I queried for an explanation, he shrugged his shoulders and blamed his boss. I could understand something in the neighborhood of $5 to $7.50 but $12 made no sense. I could have ordered two double shots at $10 and poured half of one cup out. When told that his manager was in a meeting, the waiter simply changed the bill to $8. I acquiesced and left for my appointment. On the last day, a new server comped the Italian drink. I left puzzled and bemused but no more wiser about how the prices were set, by whom and on what basis.

The moral of the story is that one does not always know how much he or she will be charged for something. This can be frustrating and make it hard to budget.

For the plan sponsors that do a terrific job in vetting fees and communicating this information to participants, keep up the great work. For those in need of improvement, there’s no time like the present to get started.

Back by popular demand, a panel of esteemed speakers will present on January 27, 2016 about the fiduciary risks and litigation trends faced by ERISA investment committee members. Sponsored by Strafford Publications, Inc. and eligible for Continuing Legal Education ("CLE") credits, the program is entitled "ERISA Plan Investment Committee Governance: Avoiding Breach of Fiduciary Duty Claims."

Faculty speakers include:

  • Dr. Susan Mangiero – Managing Director with Fiduciary Leadership, LLC;
  • Ms. Rhonda Prussack – Vice President and Fiduciary Liability Product Manager with Berkshire Hathaway Specialty Insurance; and
  • Richard Siegel, Esquire – ERISA attorney with Alston & Bird.

The panel will review key issues such as those listed below:

  • What are the ERISA regulations with which investment committees must comply?
  • How should plan sponsors vet fiduciary risks when selecting an investment committee?
  • What litigation techniques can be implemented to minimize the likelihood of a finding of breach of fiduciary duty by an investment committee?
  • What is the role of the economic expert in assessing investment committee performance and investment monitoring, post-Tibble?
  • What is the role of ERISA fiduciary liability insurance?

Inasmuch as many ERISA lawsuits cite the entire investment committee as defendants, there is a need for each member to understand her personal and professional liability as well as the risks that arise if other members are ill-prepared, are conflicted and/or lack sufficient knowledge and experience. In other words, a best practice is for the entire committee to recognize the seriousness of fiduciary obligations and behave accordingly.